January 2019. The Swiss-based Anne Frank Fund has chalked up a major victory in its tussle with the Anne Frank Foundation, which is based in the Netherlands. On 7 December, the European Trademark Office EUIPO concluded that the European registration of the word mark ‘Anne Frank’, which is owned by the Dutch organisation, was invalid.
The respective Anne Frank organisations have been locked in a bitter dispute for years over the rights to the name Anne Frank. On reflection, Otto Frank’s idea of giving two separate organisations the right to represent his daughter’s memory wasn’t perhaps such a good one. In 1957, he established the Anne Frank Foundation to administer public access to the Secret Annexe in Amsterdam, and in 1963 he set up the Swiss-based Anne Frank Fund to manage the copyright to Anne’s diaries.
The Anne Frank Fund and Anne Frank Foundation: no love lost
Initially, the two organisations worked together harmoniously for many years. However, in 2011 a dispute arose over some letters and photographs the Foundation had borrowed from the Fund. This led to an escalating row in which the two parties did everything they could to thwart each other, not just with threats but also through legal action.
Request to overturn word mark
A particular thorn in the flesh for the Swiss Fund was the fact that in 1996 its Dutch rival had managed to claim ownership of the word mark Anne Frank throughout Europe. In 2014, the Swiss organisation filed a cancellation procedure at the EUIPO to overturn the registration on the grounds that the Dutch Foundation had never actually used the name Anne Frank as a trademark.
Obligation to use a registered trademark
Trademark law states that an owner must use a trademark in order for it to remain valid. Failure to do so within a five-year period risks your rights being legally withdrawn on appeal. In an effort to prove that it had used the word mark, the Dutch foundation assembled a wide range of evidence demonstrating its use of the name Anne Frank. The examples consisted of books, brochures and DVDs about Anne Frank. Proof positive, the Dutch foundation claimed.
Not used as a trademark
But on 7 December, the European Trademark Office concluded that the Foundation had not actually used the words Anne Frank as a trademark. Obviously the name featured on all the publications cited, but this did not constitute use as a trademark, EUIPO said. It was simply a reference to the person Anne Frank, who was the subject of all the publications.
What about the Anne Frank Foundation?
But what about the use of the name Anne Frank Stichting [Foundation] and Anne Frank Huis [House], both of which also contained the name Anne Frank? As a museum and publisher, the Dutch Foundation argued, we surely also provide services? And that means we’re using Anne Frank as a trademark.
Piquant detail: on 4 October 2018, the Anne Frank Fund applied for its own trademark registration to the word Anne Frank
That argument also fell flat with the EUIPO. Although the use of the Anne Frank Stichting could be considered as use of a trademark, EUIPO replied that use of the trademarks Anne Frank Stichting and Anne Frank Huis could not be regarded as equivalent to the use of the words Anne Frank on their own, in the form in which they were registered. The European trademark registration was thus declared invalid and the Foundation duly lost its European rights to the word mark Anne Frank. An additional piquant detail is that in October 2018, the Swiss Fund submitted an application of its own to register the word mark Anne Frank in Europe.